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State v. Botts

Supreme Court of Nebraska

May 4, 2018

State of Nebraska, appellee,
Kirk A. Botts, Appellant.

          1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court's determination.

2. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.
3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.
4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of liberty of the citizen, and such encounters are outside the realm of Fourth Amendment protection.
5. Police Officers and Sheriffs: Search and Seizure. A tier-two police-citizen encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning.
6. Police Officers and Sheriffs: Search and Seizure: Arrests. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy search or detention.
[299 Neb. 807] 7. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.
8. Criminal Law: Warrantless Searches: Probable Cause. Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.
9. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.
10. Police Officers and Sheriffs: Probable Cause. In assessing probable cause, an officer's relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.

          Petition for further review from the Court of Appeals. Inbody, Pirtle, and Riedmann, Judges, on appeal thereto from the District Court for Lancaster County, Robert R. Otte, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.

          Matthew K. Kosmicki, of Brennan & Nielsen Law Offices, PC, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, and Funke, JJ., and Derr and Urbom, District Judges.

          Heavican, C.J.


         We granted the State's petition seeking further review of the decision of the Nebraska Court of Appeals, remanding the cause with directions to vacate Kirk A. Botts' conviction and to dismiss the charge against him. We reverse the decision of the Court of Appeals and remand the cause with directions.

          [299 Neb. 808] FACTUAL BACKGROUND

         Botts was charged with possession of a deadly weapon by a prohibited person under Neb. Rev. Stat. § 28-1206 (Reissue 2016). Botts' motion to suppress was denied. Following a jury trial, Botts was convicted and eventually sentenced to 1 year's imprisonment and 1 year of postrelease supervision.

         Botts appealed to the Court of Appeals, assigning that the district court erred in denying his motion to suppress. The Court of Appeals agreed, concluding there was not probable cause to arrest Botts and that the inventory search of his vehicle must be suppressed.

         Facts Leading to Arrest and Search.

         The Court of Appeals set forth the following facts in its opinion:

Officer Jason Drager of the Lincoln Police Department testified that on March 10, 2016, around 2:30 a.m., he was driving back to the police station in his police cruiser. While driving, he saw a vehicle on a side street that was not moving and was partially blocking the roadway. The vehicle was situated at an angle, with the front end by the curb and the back end blocking part of the street. Drager thought maybe there had been an accident. He turned down the street and saw an individual standing by the driver's side of the vehicle. Drager turned on his cruiser's overhead lights, parked his cruiser behind the vehicle, and contacted the individual, later identified as Botts. He asked Botts "what was wrong, " and Botts initially told Drager "to mind [his] own business." When Drager asked Botts again about what had happened, Botts told him "he was out of gas and was trying to push the vehicle to the side of the road." Drager testified that he did not recall Botts' saying that he drove the vehicle there. Botts asked Drager if he could help him, and Drager told him he could not help, based on Lincoln Police Department policy.
[299 Neb. 809] Drager testified that he decided he should remain at the location because Botts' vehicle was blocking the roadway and could cause an accident. Drager then stood back by his cruiser and watched Botts push the vehicle back and forth. Drager stated that Botts became "verbally abusive" toward him after he said he could not help him, so Drager decided to ask other officers to come to the location "for safety purposes." Three other officers responded.
One of the officers who responded, Officer Phillip Tran, advised Drager that he had stopped Botts a couple hours earlier that night for traffic violations. Drager testified that Tran told him he had detected an odor of alcohol on Botts at the time of the earlier stop. Based on the information from Tran, Drager decided to approach Botts and ask him if he had been drinking. Drager testified that when he asked Botts if he had been drinking, Botts became angry, started yelling, and started backing up away from him.
Drager testified that Botts' demeanor led him to believe Botts was under the influence of "some kind of alcohol or drug." However, Drager testified that he did not believe alcohol or drugs were affecting Botts' ability to answer questions. Drager did not recall Botts' stating that he had been drinking.
Drager testified that Botts backed up to the other side of the street and stopped with his back against a light pole. When he was backing up, he was not coming at the officers and was not making threats. The four officers surrounded Botts by the light pole. Botts started yelling "something along the line of shoot me, shoot me." Drager testified that Officer David Lopez, one of the officers at the scene, pulled out his Taser for safety purposes and to try to get Botts to comply with their request to put his hands behind his back. He eventually did so and was handcuffed and placed in the back of Drager's cruiser.
[299 Neb. 810] Drager testified that the officers were telling Botts to put his hands behind his back for their safety and Botts:safety. Drager stated that he was concerned for his safety ...

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